The DACA Decision and Requiring Agencies to Turn 'Square Corners': Reading Reliance Interests into Immigration Law

Cato Supreme Court Review 2019-2020 (Forthcoming)

Roger Williams Univ. Legal Studies Paper No. 204

27 Pages Posted: 3 Aug 2020

See all articles by Peter Margulies

Peter Margulies

Roger Williams University School of Law

Date Written: August 3, 2020

Abstract

In holding that the Trump administration's rescission of President Obama's Deferred Action for Childhood Arrivals (DACA) program impermissibly cut corners, the Supreme Court prompted a robust debate on the interaction of administrative and immigration law. Chief Justice Roberts's opinion for the Court in Dep't of Homeland Security v. Regents of the Univ. of California centered on the reliance interests of DACA recipients, who study, work, care for their families, and serve in the military. This Article locates Regents in a tradition of executive branch stewardship over intending Americans that dates back to the Founding Era.

Stewardship requires consistency and equitable balancing, including synergy between expectations and the public interest. In Regents, Chief Justice Roberts found consistency lacking in the differences between DHS's 2017 and 2018 explanations for ending DACA. Applying administrative law's Chenery doctrine, Chief Justice Roberts considered only the 2017 version and found that DHS had not fulfilled its "responsibility" to expressly deliberate about DACA recipients' expectations and alternatives to an outright rescission. Chief Justice Roberts's skepticism about agency rationales echoed his view in the 2019 census case that the Commerce Department's rationale for asking a citizenship question was "pretextual." Requiring more careful deliberation from DHS in Regents, Chief Justice Roberts cited DACA recipients' contributions to American economic and social well-being.

In dissent, Justices Thomas and Kavanaugh asserted that the majority had required too much of DHS. Justice Kavanaugh argued that Chief Justice Roberts's reading of the Chenery doctrine was too broad. Justice Thomas argued that DACA was too large a program to fit within the Immigration and Nationality Act's carefully crafted framework. The Article assesses these cogent arguments, but ultimately concludes that Chief Justice Roberts was correct that DHS's 2017 explanation did not adequately weigh the reliance interests involved in the DACA rescission.

Suggested Citation

Margulies, Peter, The DACA Decision and Requiring Agencies to Turn 'Square Corners': Reading Reliance Interests into Immigration Law (August 3, 2020). Cato Supreme Court Review 2019-2020 (Forthcoming), Roger Williams Univ. Legal Studies Paper No. 204, Available at SSRN: https://ssrn.com/abstract=3666388

Peter Margulies (Contact Author)

Roger Williams University School of Law ( email )

10 Metacom Avenue
Bristol, RI 02809
United States

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